A ruling in federal court has essentially struck down Indiana’s restrictions on drug-induced abortions, but the argument that the law places an undue burden on women caused the court to refrain from making a final judgment.

Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana issued an order Dec. 3 on cross-motions for summary judgment in Planned Parenthood of Indiana and Kentucky, Inc., v. Commissioner, Indiana State Department of Health and Tippecanoe County Prosecutor, 1:13-CV-01335.

Magnus-Stinson

Magnus-Stinson granted Planned Parent-hood’s request for summary judgment that the law violates the Equal Protection Clause of the U.S. Constitution. But she denied the agency’s requests for summary judgment on its 14th Amendment claim that the statute violates a patient’s right to choose an abortion and on its substantive due process claim.

Also, the federal judge denied Indiana’s motion for summary judgment.

Indiana’s restrictions, passed by the 2013 Indiana General Assembly, are part of a national trend among states that have been emboldened by recent rulings from the Supreme Court of the United States allowing more regulations and limitations on abortions and abortion providers.

The Indiana law requires that clinics which only dispense medications that cause abortions must have the same equipment and facilities as a clinic that provides surgical abortions. In addition, the law prohibits the Indiana Department of Health from waiving the surgical requirements.

While other states have put more prohibitions on medication abortions, the Hoosier State may be unique in that its law focuses on the clinics that only prescribe the drugs to terminate pregnancies but do not perform surgical abortions.

Largely, the drug-restriction laws have not withstood court scrutiny. State supreme courts in Oklahoma and Iowa have overturned limits on medication abortions, and the U.S. Court of Appeals in San Francisco has ruled that Arizona’s restrictions on drug-induced terminations placed an undue burden on a woman’s right to an abortion.

A contrary ruling came in late October from the North Dakota Supreme Court which upheld the state’s law curbing the use of drugs to induce an abortion.

Indiana Attorney General Greg Zoeller called Magnus-Stinson’s order a “complicated ruling” and pointed out the state cannot appeal because a final judgment has not been issued.

American Civil Liberties Union of Indiana Legal Director Ken Falk does not think the ruling was complicated. The court found the amended law was unconstitutional. The ACLU of Indiana is representing Planned Parenthood of Indiana and Kentucky in the lawsuit.

Undue burden

The “undue burden” standard was established in Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992). Here, the U.S. Supreme Court held that an abortion regulation would be unconstitutional only if it imposed an undue burden.

In its arguments for a preliminary injunction and for summary judgment, Planned Parenthood of Indiana and Kentucky maintained Indiana’s new restrictions under the Casey test violate the Constitution.

The nonprofit, in its summary judgment brief, explained it was not claiming the law would prevent patients from obtaining an abortion. Rather, the statutes place “an undue burden on women’s access to abortion because there is no medical justification whatsoever for requiring the Lafayette health center to meet physical standards designed for surgery.”

The state disputed Planned Parenthood’s contention that the law under Casey has to be deemed unconstitutional because it fails to reasonably relate to women’s health.

“Instead, as long as it does not actually place a substantial obstacle in the path of women seeking abortions, the State needs only a ‘rational basis to act’ to further a ‘valid purpose,’” Indiana asserted in its summary judgment brief. “… The requirement that abortion facilities satisfy minimal physical plant requirements furthers the State’s valid interest in promoting the health of women who undergo medication abortions, and the law does not impede a woman’s ability to seek an abortion.”

The court denied granting summary judgment on the undue burden claim because of disputed issues of material fact. This was not the first time the argument failed to persuade Magnus-Stinson. In her order granting preliminary injunction, she held Planned Parenthood was unlikely to be successful on its undue burden assertion.

Both sides presented conflicting expert testimony regarding the safety of medication abortion, treatment and continuity of care. Although Planned Parenthood and the state said there were no disputes over material facts, the court disagreed, noting the opposing testimony about the side effects of drug-induced abortions.

Planned Parenthood cited the 7th Circuit Court of Appeals’ ruling in Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 738 F3d 786 (7th Cir. 2013), arguing the opinion supports its claim because the appellate court looked at how women are being burdened as well as how the new requirements will protect women’s health.

However, the court also cited Van Hollen in denying the argument.

“Van Hollen did not contemplate that the case before it could be resolved on summary judgment, likely because of what the parties in this case ignore – that it is inappropriate for the Court to make credibility and reliability determinations regarding competing expert opinions on summary judgment,” Magnus-Stinson wrote.

Getting to summary judgment

Planned Parenthood of Indiana and Kentucky filed its complaint in federal court in August of 2013 and had its motion for preliminary injunction granted a few months later in November.

Its equal protection argument has been the most successful in court.

Planned Parenthood contends the amendments to Indiana Code 16-18-2-1.5 and 16-21-2-2.5 will impact the clinic in Lafayette where only drug-induced abortions are provided. The law does not impose the stricter standards on physicians’ offices which also prescribe the pills for medication abortions.

The agency argued the change in the law violates its rights under the Equal Protection Clause because it divides medication abortion providers into two groups – abortion clinics and physicians’ offices – without a rational basis for doing so.

In part, the state countered that the Legislature did not overreach by limiting only abortion clinics because physicians’ offices very rarely, if at all, provide medication abortions.

The court agreed with Planned Parenthood’s equal protection claim, granting both the preliminary injunction and summary judgment on this argument. In the summary judgment, the court found the law results in disparate treatment. While the statute requires the Lafayette clinic to choose between complying with the new standards or stop providing medication abortions, it does not obligate physicians’ offices to make this choice.

A telephone conference between opposing counsel and Magistrate Judge Mark Dinsmore was scheduled for Dec. 15 (after IL deadline). The parties were to discuss the court’s ruling as well as the necessity of the trial scheduled for June 2015. If a trial is not deemed necessary, the attorneys were to consider the contents of any proposed permanent injunction and final judgment.•

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Marilyn Odendahl covers the Indiana General Assembly as well as law schools and bar associations across the state for the Indiana Lawyer. Prior to joining the Indiana Lawyer, she was a reporter for nearly eight years at The Elkhart Truth, in Elkhart, Ind., where she primarily covered business. She holds degrees from Ball State University and the University of Louisville.